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Do Approved Inspectors owe a duty under s.1(1) of the Defective Premises Act 1972 in the exercise of their building control functions?

Continuing in our series on the implications following the Grenfell Tower disaster, we consider the Court of Appeal judgment in The Lessees and Management Company of Herons Court v NHBC Building Control Services Limited [2019] EWCA Civ 1423 (handed down on 14 August 2019) on whether Approved Inspectors owe a duty under s.1(1) of the Defective Premises Act 1972 (the DPA 1972) in the exercise of their functions under Part II of the Building Act 1984 (the 1984 Act), which involved inspection and certification to ensure compliance with building regulations.

The Defective Premises Act 1972

S.1(1) of the DPA 1972 provides:

"A person taking on work for or in connection with the provision of a dwelling (whether the dwelling is provided by the erection or by the conversion or enlargement of a building) owes a duty -

if the dwelling is provided to the order of any person, to that person; and

without prejudice to paragraph (a) above, to every person who acquires the interest (whether legal or equitable) in the dwelling;

to see that the work which he takes on is done in a workmanlike or, as the case may be, professional manner, with proper materials and so that as regards that work the dwelling will be fit for habitation when completed."

The Facts

The Appellants are lessees of flats at Herons Court in Hertfordshire (Herons Court). The Respondent is an Approved Inspector under Part II of the 1984 Act. In 2012 the Respondent, on completion, had certified that the flats complied with the Building Regulations. The Appellants issued a claim asserting that the flats were not compliant with the Building Regulations and therefore the Respondent had breached its duty to the Appellants under s.1(1) of the DPA 1972.

The Appellants asserted (at first instance and on appeal) that:

on its natural and ordinary meaning s.1(1) of the DPA extends to Approved Inspectors because they take on work "in connection with" the provision of a dwelling;

the Respondent's responsibility, to secure that Heron Court was built in compliance with building regulations, was work "in connection with" the provision of a dwelling;

there is a distinction between Approved Inspectors, who voluntarily take on work to ensure compliance with the building regulations, and local authorities which have that duty imposed on them under Part I of the 1984 Act.

The Respondent applied to strike out the claim on the ground that Approved Inspectors do not owe a duty in law under s.1(1) of the DPA 1972. The Respondent submitted that:

the natural meaning of "work for or in connection with the provision of a dwelling" is work whose purpose it is to 'provide', i.e. bring into physical existence, a dwelling.

the duty in s.1(1) is directed towards parties, such as builders, architects and engineers, involved in the physical creation of the dwellings, by construction or design and planning;

the function of building control process is to ensure compliance with the building regulations, not to provide the dwellings.

High Court decision

In the High Court, Waksman J held that s.1(1) of the DPA 1972 did not apply to building control inspectors. Agreeing with the Respondent, he found that the role of the designers or constructors of a dwelling is distinct from the role of building inspectors to ensure that design or construction is lawful. In reaching his decision, Waksman J relied on the House of Lord's decision in Murphy v Brentwood District Council, which held that local authorities do not owe a duty of care in relation to the passing of plans for a house with defective foundations. Finally, he rejected the Appellant's distinction in the roles of Approved Inspectors and local authorities, reasoning that it "would be very odd if their roles were different, given that the approved inspector regime is effectively a privatised version of the local authority regime."

The Court of Appeal

The Court of Appeal dismissed the appeal and upheld Waksman J's decision. Agreeing with the distinction drawn by the Respondent and Waksman J the Court of Appeal held that Approved Inspectors have "no statutory power to influence the design or construction of a building in any way, save to stipulate that it must comply with the law. In certifying, or refusing to certify, plans and works, the AI is not engaged in the positive role of the provision or creation of the relevant building, but performs the essentially negative regulatory role of checking for compliance against prescribed criteria."

In its comparison of the statutory regimes governing the building control functions of local authorities and Approved Inspectors, the Court of Appeal agreed with the Respondent that "it is difficult to see how these activities amount to "work for or, in connection with the provision of a dwelling" when carried out by an AI, in circumstances where they do not when carried out by a local authority." On that basis, the Court of Appeal agreed that the House of Lords decision in Murphy is "highly persuasive" authority that the duty under s.1(1) DPA 1972 is not owed by Approved Inspectors.

In concluding its judgment, the Court of Appeal noted, "it is the first time such duty on Approved Inspectors has been alleged in the 35 years since the 1984 Act. Whilst it is always possible that the true legal position has simply been missed or misunderstood, it is inherently unlikely that so many legal advisers, advocates and judges would have done so over such a sustained period of time."

Commentary

The Court of Appeal's judgment provides a binding and persuasive authority on the scope of duty owed under s.1(1) DPA 1972. Whilst this case is the first time in which such a duty has been alleged to apply to Approved Inspectors, the decision reaffirms the position in law. Parties without a direct contractual relationship with the Approved Inspector will have to look elsewhere for recovery of their losses arising out of a failure of their properties to comply with building regulations.

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